4 things to know about the copyright bill that has SA stars up in arms

For nearly 10 years, the creative industry has been up in arms over a proposed Copyright Amendment Bill that seems to misunderstand the needs of South Africa's creative industries. Even the late Mbongeni Ngema likened it to colonialism when speaking against it at parliament as a representative of the Dramatic, Artistic and Literary Rights Organisation.

Taking centre stage most recently are the efforts being made by the Copyright Coalition of South Africa and social media content creator Zethu Gqola, who are challenging how the bill will affect different creators.

WHAT IS THE BILL ALL ABOUT?

Formulated in 2016, the bill is meant to protect creators of copyright works. In 2022, it was passed by 210 votes in parliament with only 45 MPs voting against it. 

The bill has become divisive due to parties that see it as progressive for its take on “fair use” and matching that of laws seen in the US, UK and Singapore, while others find it has the right intentions with several flaws. As reported in the Daily Maverick, this includes the issue of creative labour being freely accessible to the government and the education sector which would benefit multinational technology companies, also known as Big Tech. These companies include Google, Tesla and Tencent.

WHY IS THE BILL A PROBLEM?

In a YouTube interview for Act Now, CCSA chairperson Chola Makgamathe explained that the “fair use” provisions allow anyone to use any creative product, be it a book, music or any other creative content, without prior consent

This means the original creator of a product will have to fight in court to prove that there has been an infringement of what they have created since the law protects those who accessed their work freely.

“The tragedy about that is that it puts South African creatives in a position where they have to find the money to take users to court — users who have deep pockets who can keep you in court for years” said Makgamathe.

She said this would create a lot of litigation which could take months to decades due to the slow pace at which the legal system operates.

WHO IS AGAINST IT?

The bill has racked up quite a list of enemies. News24 reported on a global network of up to five million authors who are against the adoption of the bill. Gadi Ordon, the director-general of the International Confederation of Societies of Authors and Composers , told the publication that “if adopted, the bill will harm South Africa's creative community, devalue creators' works and be out of step with international best practice.”

Local music icon Yvonne Chaka Chaka urged South Africans and the president to engage the bill and avoid the same issues coming up once more with the next set of creatives.

Speaking at a media briefing, famed local poet Mzwakhe Mbuli spoke of how many local talents often die poor as a result of not benefiting from reruns and reuse of their creative talents,citing the Generations 16 saga where actors were fired from the local soap after querying the lack of royalties they receive.

A petition on Change.org was set up by Pen Afrikaans, a writers union, calling for South Africans to stop the Copyrights Amendment Bill.

LEGAL EXPERTS

In 2023, law firm Webber Wentzel warned of the “copyright calamity” the bill would cause. Urging that serious considerations be taken, Joshua Leroni and Carla Collett wrote, “the bills will inadvertently limit their rights, including by restricting them from freely contracting with businesses on terms that are commercially favourable and aligned with international norms. In turn, the legal risk of working with South African creators will increase.”

They also cite an article in which Ziyanda Buthelezi-Ngcobo, a member of Netflix's public policy, said that while the streaming platform supports the objectives of the bill they are concerned it could be harmful to everyone including the stakeholders the government wants to protect. Their main concern was that the bill works for the music field but does not translate to film and television.

Copyright consultant Denise Rosemary Nicholson wrote in a Ground Up column that the bill would benefit South Africans by taking them into the 21st century. Speaking on how progressive the bill is, Nicholson said there had been a lot of misinformation about it and noted there were contradictions from those against it.

“Ironically, some of them are the very same parties that have failed to pay fair royalties to the creators they claim to represent. Such an approach is dishonest and surely undermines the credibility of those making such arguments,” she wrote. “There is no evidence anywhere in the world that fair use has caused any damage to creative industries,” she said.

The bill will come into effect on Thursday.